Allianz Australia Insurance Ltd v Zou
[2022] NSWPICMP 69
•30 March 2022
DETERMINATION OF REVIEW PANEL CITATION: Allianz Australia Insurance Ltd v Zou [2022] NSWPICMP 69 CLAIMANT: Zhen Shao Zou INSURER:
Allianz Australia Insurance Ltd
REVIEW PANEL: Principal Member John Harris
Dr Mohammed Assem
Dr Margaret GibsonDATE OF DECISION: 30 March 2022 CATCHWORDS: MOTOR ACCIDENTS- The claimant was involved in a motor accident on 2 December 2017 when he sustained various soft tissue injuries; Held- the claimant was examined by both Medical Assessors; claimant had no cervical spine movement which was not medically explicable and inconsistent with previous reporting; the absence of neck movement is not asymmetrical and does not satisfy DRE Category II; claimant sustained a soft tissue injury to the right shoulder which resolved; current right shoulder symptoms emanated from the cervical spine and were assessed in accordance with the Nguyen principle; loss of movement not explicable based on previous assessments and absence of pathology; shoulder assessed by way of analogy; finding made that low back injured despite some delay in reporting symptoms. Body part assessed at DRE Category I; finding made that right knee injured in motor accident; no crepitus or loss of movement and assessed at 0%; claimant assessed at 3% whole person impairment; original assessment revoked.
DETERMINATIONS MADE: The Panel revokes the certificate dated 15 April 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%:
· aggravation of degenerative changes in the lumbar spine;
· soft tissue injury to the cervical spine;
· right shoulder soft tissue injury and Nguyen principle, and
· right knee – soft tissue injury.
REASONS
BACKGROUND
1.Mr Zhen Shao Zou (the claimant) suffered injury on 2 December 2017 when his motor vehicle was rear ended by the insured vehicle.
2.Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Zou any damages under the Motor Accident Injuries Act 2017 (the MAI Act).
3.The present dispute is whether Mr Zou’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.
4.Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
5.The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
6.This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Alexander Woo and dated 15 April 2021. The Medical Assessor assessed the degree of permanent impairment at 16%. The details of that assessment are set out later in these Reasons.
THE REVIEW
7.The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
8.On 7 July 2021, the delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
9.Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, clause 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
10.Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[5]
[5] Section 41(2) of the PIC Act.
11.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
12.The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
13.On 19 October 2021 the Panel issued a Direction to the parties requesting bundles of documents.
ASSESSMENT UNDER REVIEW
14.Medical Assessor Woo provided a medical assessment dated 15 April 2021[8] determining that the permanent impairment of the injuries was greater than 10%. The doctor found dysmetric movement in the cervical spine with altered sensation not confined to a dermatomal distribution, normal examination of the thoracic spine and restricted movement in the lumbar spine. Range of movement in the right shoulder was restricted by muscle guarding.
[8] Insurer’s bundle, page 934.
15.The Medical Assessor assessed the lumbar and cervical spines at DRE II due to dysmetria and assessed the right shoulder at 8% due to loss of range of movement. After making some deductions, the Medical Assessor assessed permanent impairment at 16%.
MATERIAL BEFORE THE REVIEW PANEL
16.The Panel requested and were provided with separate bundle of documents provided by the parties.
Initial records
17.The ambulance report recorded a history that Mr Zou was complaining of right shoulder and chest pain and denied cervical spine pain and spinal tenderness on palpation. Later in the report there is reference to complaints of “scapula pain down to his right elbow, right knee pain and mid sternum pain to right rib”. No belt marks were observed.[9]
[9] Insurer’s bundle, page 548.
18.Mr Zou was taken by the ambulance and admitted to Canterbury hospital complaining of neck tenderness and right knee pain.[10] Tenderness in the neck was recorded by the tirage nurse.[11] The discharge note from the hospital referred to “pain every where (sic) but mainly right sided shoulder”.[12] Other observations included no seat belt marks on the chest wall and no cervical spine tenderness.[13]
[10] Insurer’s bundle, page 208.
[11] Claimant’s bundle, page 14.
[12] Insurer’s bundle, page 220.
[13] Insurer’s bundle, page 619.
19.Mr Zou was admitted to the emergency department of Westmead hospital on 9 December 2017 and discharged on 10 December 2017.[14] The history of presenting complaint was of “worsening pain in neck, right shoulder, right lateral chest and right knee”. Tenderness was noted at C7 and nil midline spinal tenderness was recorded in the thoracic, lumbar and sacral spine. Full range of movement was recorded in the right shoulder. Mild tenderness on palpation was noted on the right lateral knee joint with range of movement less that the left knee.
[14] Insurer’s bundle, page 613.
Clinical notes – General Practitioner
20.Mr Zou first consulted Dr Diep on 9 December 2017 complaining of neck pain, right sided shoulder girdle pain, chest and sternum pain, upper back pain and right knee pain with crepitus.[15] A further consultation on 11 December 2017 noted similar complaints.[16]
[15] Insurer’s bundle, page 574.
[16] Insurer’s bundle, page 573.
21.On 13 December 2017 Dr Nguyen referred Mr Zou for an MRI scan of the cervical spine.
22.On 14 December 2017 Dr Diep also referred to lower back pain which started “few days ago”.[17] By letter dated 15 December 2017 Dr Diep noted injuries sustained in the motor accident as whiplash injury and traumatic inflammation of C5, right shoulder strain, soft tissue injury to the chest wall, soft tissue injury of the right knee and right thigh.[18]
[17] Insurer’s bundle, page 572.
[18] Insurer’s bundle, page 641.
23.In response to questions from the insurer, Dr Calvache Rubio stated in a letter dated 13 July 2018 that Mr Zou was asymptomatic prior to the motor accident and since then had developed chronic pain with radicular symptoms.[19] The doctor’s clinical notes indicate that the claimant’s initial attendance at that medical practice was on 4 May 2018.[20]
[19] Insurer’s bundle, page 92.
[20] Insurer’s bundle, page 100.
24.On 4 May 2018 Dr Rubio recorded pain in the neck, back, right knee and pain radiating to the right shoulder with pins and needles in the hand.[21]
[21] Insurer’s bundle, page 226.
Physiotherapy
25.An Allied health recovery request dated 25 January 2018 noted ride sided pain in the neck, shoulder, upper back, right knee and great toe.[22] An initial assessment was undertaken on 21 December 2017.[23] Subsequent assessments noted low back pain.[24]
[22] Insurer’s bundle, page 499.
[23] Insurer’s bundle, page 503.
[24] Insurer’s bundle, page 515 (1 March 2018).
Radiology
26.A chest x-ray was performed at hospital immediately following the motor accident and was reported as normal.
27.A CT scan of the cervical spine dated 10 December 2017 is reported as showing loss of disc space at C5-6 and acute ligamentous injury is not excluded.[25]
[25] Insurer’s bundle, page 616.
28.The bone SPEC and CT scan dated 14 December 2017 showed multilevel discovertebral degenerative changes in the cervical and thoracolumbar spine more pronounced at the C5/6 level.
29.The MRI of the cervical spine dated 22 January 2018 is reported as showing cervical spondylosis with potential right C6 compression with no evidence of “traumatic osseous injury”.[26]
[26] Insurer’s bundle, page 53.
30.An x-ray of the right knee dated 22 May 2018 refers to a clinical history of right knee pain post motor accident and is described as unremarkable. The MRI scan of the dame date is reported as showing mild degeneration within the posterior horn of the medial meniscus without discrete tear and full thickness chondral fissuring within the medial trochlea.[27]
[27] Insurer’s bundle, page 55.
31.A right C5/6 foraminal injection was performed on 26 April 2019.[28]
[28] Insurer’s bundle, page 710.
Specialist treating records
32.Dr Bhisham Singh, orthopaedic surgeon, initially examined Mr Zou on 14 November 2018. Mr Zou then complained of significant back pain, right buttock and hip pain and neck and right arm pain. An MRI scan was recommended.[29]
[29] Insurer’s bundle, page 744.
33.Dr Singh’s report of physical examination revealed diminished sensation to light touch in the right C6/7 distributions. Neck and low back movement was significantly restricted.[30]
[30] Insurer’s bundle, page 745.
34.On 4 April 2019 Dr Singh reported persistent neck and right arm pain consistent with the right C5/6 disc bulge shown on the MRI scan.[31]
[31] Insurer’s bundle, page 741.
35.On 4 July 2019 Dr Singh noted significant benefit from the right C5/6 injection and recommended ongoing physiotherapy.[32]
[32] Insurer’s bundle, page 742.
Other records
36.The claim form signed by Mr Zou on 20 December 2017 described the motor accident in the following circumstances:[33]
“As I approached the intersection between Bunnings and McDonalds, I slowed down before coming to a complete stop at the red light. While I was stationary another vehicle … rear-ended my vehicle pushing it forward approximately 10 metres.”
[33] Insurer’s bundle, page 38.
37.In the claim form Mr Zou stated that he suffered injuries to the neck, both shoulders, right arm, upper back, lower back, both legs and suffered anxiety and shock.[34]
[34] Insurer’s bundle, page 38.
38.A certificate of capacity dated 15 December 2017 completed by Dr Thomas Diep noted that Mr Zou first attended the medical practice on 9 December 2017 and diagnosed injury to the cervical spine, right shoulder, upper and low back strain, right knee and right thigh. The doctor noted there was no relevant past history and Mr Zou was in prior good health and jogged daily prior to the motor accident. [35]
[35] Insurer’s bundle, page 41.
39.Photographs show the accident scene and the damage to the claimant’s motor accident.[36]
[36] Claimant’s bundle, pages 297 – 303.
Qualified opinions
40.Dr Dias was qualified by the claimant and provided a report dated 20 December 2019.[37] The doctor noted a history of widespread pain developing over the days following the motor accident following a significant whiplash injury and striking his right knee against the steering wheel column.
[37] Insurer’s bundle, page 57.
41.Dr Dias diagnosed chronic cervical spine pain with persisting right C6 radiculopathy, chronic lumbar spine pain and right knee patellofemoral dysfunction. The loss of right shoulder movement was due to referred pain from the neck. The soft tissue injuries to the chest and thoracic spine had resolved.
42.Dr Verma, psychiatrist, was qualified by the claimant and provided a report dated 1 October 2019. The doctor diagnosed widespread physical pain and improving symptoms of post-traumatic stress disorder and major depression.[38]
[38] Insurer’s bundle, page 76.
43.Dr Ahmed, psychiatrist, was qualified by the claimant and provided a report dated 24 August 2020.[39] The doctor diagnosed a post-traumatic stress disorder with a comorbid major depression.
[39] Insurer’s bundle, page 84.
44.Associate Professor Shatwell was qualified by the insurer and provided two reports dated 2 July 2020.[40] The doctor noted that the there was no complaint of lumbar pain at the hospital, no cervical spine tenderness and full range of movement of the shoulders. Chest and right shoulder pain were due to the restraint from the seatbelt.
[40] Insurer’s bundle, page 485.
45.There was no assessable impairment of the lumbar and cervical pain and no diagnosis of injury for the right knee. Loss of shoulder movement was only 1% impairment.
46.The doctor found no radiculopathy and stated that this was consistent with the observations of Dr Singh and Dr Myers.
47.Dr Yajuvendra Bisht, psychiatrist was qualified by the claimant and provided a report dated 13 August 2021. Dr Bisht diagnosed a major depressive disorder and post-traumatic stress disorder caused by the motor accident.[41]
[41] Claimant’s bundle, page 345.
Other Medical Assessments
48.Associate Professor Myers issued a medical assessment dated 16 October 2018 on the issue of minor injury.[42] The doctor noted that the only injury referred for assessment was the cervical spine. On examination, there was general restriction of movement which was inconsistent with other movements displayed by Mr Zou within the examination room.
[42] Insurer’s bundle, page 647.
49.Associate Professor Myers opined that the complaints of pain and symptoms in the right arm were inconsistent with any nerve root and not consistent with non-verifiable radicular complaints. He accepted that Mr Zou only suffered a cervical spine soft tissue injury which was a minor injury within the meaning of the MAI Act.
50.Professor Nicholas Glozier provided an assessment dated 13 December 2018 when he concluded that Mr Zou suffered a posttraumatic stress disorder caused by the motor accident which was not a minor injury within the meaning of the MAI Act.[43]
[43] Insurer’s bundle, page 655.
51.Dr Alexander Woo issued a medical assessment dated 23 August 2020[44] concerning a treatment dispute for eight sessions of physiotherapy. The doctor noted that the altered sensation in the right upper and lower limbs were not confined to any dermatomal distribution.
[44] Insurer’s bundle, page 669.
52.Dr Woo noted improvement in symptoms following previous physiotherapy. He concluded:[45]
“With regard to the slow recovery from injury in an older person at the age of 75, and the aggravation of degenerative changes in the cervical spine related to the motor vehicle accident on 2 February 2017, I am satisfied that Mr Zou would have further improvement of his symptoms and range of movement with further sessions of physiotherapy.”
SUBMISSIONS
Claimant’s submissions – Permanent impairment dispute[46]
[45] Insurer’s bundle, page 675.
[46] Insurer’s bundle, page 26.
53.The claim for permanent impairment is based on the opinion of Dr Dias dated 20 December 2019 and subsequent opinions provided by Dr Verma and Dr Ahmed. It was submitted that the injuries to the neck, lower back, right shoulder, right knee and psychological sequelae were in dispute.
54.The claimant submitted that he has a disc protrusion at C5/6 with persisting radiculopathy and chronic pain. He also suffers from chronic pain in the lumbar spine secondary to an acute soft tissue injury.
55.The claimant has pain in the right shoulder with pins and needles radiating down the right arm. Dr Dias opined that the loss is not due to innate pathology in the right shoulder but reflects referred pain from the cervical spine condition.
56.The right knee was injured when he impacted it against the steering wheel column. The claimant relied on the MRI scan dated 22 May 2018 as to the pathology caused by the motor accident.
57.The claimant otherwise referred to the psychological sequalae caused by the motor accident.
Insurer’s submissions dated 13 October 2018[47]
[47] Insurer’s bundle, page 478
58.The insurer submitted that the neck injury did not satisfy DRE II and there was no radiculopathy. It referred to the opinion of Dr Shatwell which was consistent with the opinions expressed by Dr Singh and Associate Professor Myers. Associate Professor Myers diagnosed a soft tissue injury.
59.The insurer submitted that there was no lumbar spine injury and referred to the opinions of Dr Shatwell and Assessor Woo.
60.The insurer noted that a full range of movement of the shoulders was recorded at Canterbury Hospital. Dr Shatwell also noted full range of movement of the shoulders and assessed 1% impairment. Assessor Woo recorded no tenderness in both shoulders and did not assess any injury to that body part.
61.In relation to the right leg, the insurer referred to the ambulance report which recorded free movement and no deformity or abnormality.
62.The insurer submitted that the Medical Assessor incorrectly accepted a history that Mr Zou experienced pain in neck, chest, back right arm, and right leg following the motor accident. It submitted that the initial complaints at hospital were limited to the right shoulder and chest and that Mr Zou denied cervical spine pain or tenderness at the hospital.
63.The insurer noted there was a normal range of right shoulder motion when Mr Zou re-attended hospital on 10 December 2017 and on 11 December 2017 there was full range of movement of the right knee. Dr Shatwell found no patellofemoral pain or crepitation and made no assessment. Any pathology shown in the scans was degenerative in nature and unrelated to the motor accident.
Insurer’s review submissions dated 29 April 2021[48]
[48] Insurer’s bundle, page 945
64.The insurer submitted that the Medical Assessor failed to properly consider contemporaneous records, ongoing clinical records and radiological scans which shows that the alleged problems related to pre-existing degenerative changes. The insurer submitted that the whole body SPECT showed “degenerative change to almost every joint”.[49]
[49] Insurer’s review submissions, [39].
65.The insurer referred to the contemporaneous records at Canterbury Hospital where the main complaint was of right shoulder pain and no cervical spine tenderness. Neurological examination was normal and only a chest x-ray was order. Subsequent attendance at hospital on 10 December 2017 described generalised body pain with some tenderness at C7.
66.The insurer submitted that the Medical Assessor should have made findings consistent with Associate Professor Shadwell and Assessor Myers that the complaints relate to the chronic degenerative changes illustrated on radiological changes and the SPECT scan which affected “all parts” of the claimant’s body. Assessor Myers found that Mr Zou suffered a minor injury only to the cervical spine and while he was not asked to assess permanent impairment “it is clear from his findings that the Claimant would have been assessed at DRE Category 1, so 0%”.[50]
[50] Insurer’s review submissions, [17].
67.Medical Assessor Woo examined the claimant previously on the issue of reasonable and necessary for eight sessions of physiotherapy and “had particular regard to the findings of Assessor Myers” that this was only a soft tissue injury to the cervical spine.
68.The insurer emphasised that the initial complaints were limited to the right shoulder and chest and at hospital there was no cervical spine pain or tenderness. An examination of the medical records and reports show various restrictions of motion in the cervical and lumbar spines and right shoulder.
69.The insurer submitted that where more than one option was available then the preference for one rather than the other had to be explained and is required to consider and respond to a clearly articulated argument. In that regard the insurer relied on the opinions expressed by Assessor Myers and Associate Professor Shatwell.
70.The insurer submitted that the Medical Assessor did not explain how he found injuries to the various body parts and had an incorrect history of the initial complaints.
71.The insurer submitted that the findings of dysmetria were inconsistent with previous examination findings. It was suggested that on Assessor Myers findings “the claimant would have fallen within DRE Category 1 so 0% WPI”[51] which was the finding by Associate Professor Shatwell.
[51] Insurer’s review submissions, [54].
72.The insurer submitted that it was “clear that all issues were pre-existing and there should be a reduction reflecting this which would result in a 0% WPI.”[52]
[52] Insurer’s review submissions, [55].
73.The insurer referred to shoulder assessments on 12 August 2020 and in April 2021 and submitted that if Dr Woo’s assessment was accurate then the shoulder had become more restricted over time which “would be commensurate with the pre-existing and extensive degenerative changes as opposed to anything arising out of the motor vehicle accident”.[53] Further the uninjured shoulder should be taken as a baseline and deducted from the injured joint.
[53] Insurer’s review submissions, [57].
RE-EXAMINATION
74.Mr Zou was examined by both Medical Assessors on the Review Panel. Their joint examination report is as follows:
“History of Injury
Mr Zou is a 78 year old right hand dominant man who is originally from China. He had very poor command of English language, relying heavily on assistance from a Cantonese interpreter. He states that prior to the subject motor vehicle accident, he was fit and active and running with his grandchildren. He denied any previous musculoskeletal accidents, injuries or complaints.
Due to underlying depressive symptoms, he did not wish to discuss the motor vehicle accident. He reported injuries to his neck, right arm, back and right knee. He has been relying on a walking stick for support over the past three or four years as it feels unsteady on his feet. He presented his medications which included Panadol, Fluoxetine, Gabapentin and Quetiapine.
He experiences intermittent neck discomfort but was pain free at the time of the assessment. He also reported in intermittent discomfort in his right shoulder that progressively increased in intensity as he elevates his arm. The discomfort spreads to involve the entire like right arm. He considered his left shoulder was ‘completely fine’. There was a complained of intermittent discomfort in his right knee and across his lower back. There was global numbness and weakness involving his entire right leg.
Examination
Mr Zou had a flat affect but was cooperative during assessment. He ambulated with a slow cautious shuffling and slightly wide based gait pattern. He was unsteady on his feet without the support of a walking stick. His movements were slow and thereby tremor that was worse with activity.
Cervical Spine
There was tenderness on palpation. There was no muscle guarding or spasm. There was almost no visible cervical movement in any plane. His upper limb reflexes were symmetrically increased. Sensation was globally reduced to his entire right arm. Power of his right arm was also globally reduced.
Upper Extremities
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
180°
Extension
30°
50°
Adduction
70°
50°
Abduction
10°
180°
Internal Rotation
10°
80°
External Rotation
60°
60°
Lumbar Spine
He demonstrated a marked restriction in lumbar movement. Flexion and extension were negligible. Lateral flexion was symmetrically reduced to one quarter of normal range. Rotation was symmetrically reduced to one eighth of normal range. There was no measurable difference in the circumference of his calves or thighs. His lower limb reflexes were also symmetrically increased. The generalised weakness and to his right leg and generalised sensory loss.
Right knee.
Has tenderness on palpation. There were no joint crepitations. He demonstrated a normal range of knee motion.
Conclusion
The examination findings in relation to range of motion were even less than was identified at other assessments. The Panel were of the opinion that there was no distinct and separate right shoulder diagnosis and noted that no specific right shoulder pathology had been demonstrated on available imaging. Therefore, the right shoulder impairment was assessed based on the Nguyen principle. The MAA Guidelines require assessors to utilise the entire gamut of their clinical skills and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly.
Based on their clinical expertise the Panel were of the opinion the degree of restriction demonstrated at their assessment was not plausible in relation to the injury sustained in the subject accident. In this setting goniometer measurements could not be relied upon, and therefore another method of assessment had to be utilised. Therefore, the right shoulder was assessed by way of analogy. An analogous condition, in the Panel’s clinical opinion would be moderate crepitations left AC joint giving 20% joint impairment (AMA4, Table 19, p 59) which is multiplied by 15% WPI (AMA4, Table 18, p 58) to obtain 3% WPI.”
FINDINGS
75.The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[54] The Panel adopts the joint examination findings of the two Medical Assessors[55] and adds the following reasons.
[54] Section 7.26(6) of the Act.
[55] Set out at [73].
76.The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[56] and Insurance Australia Ltd v Marsh.[57]
[56] [2021] NSWCA 287 at [40], [41] and [45].
[57] [2022] NSWCA 31 at [11], [21], [64].
77.The insurer’s submissions that we should adopt other previous assessments, such as that provided by Medical Assessor Myers, are incorrect at law. We are required to conduct our assessment and cannot solely rely on previous assessments which are only binding as to the precise medical assessment referred to that Medical Assessor: The findings of the previous Medical Assessors and/or Review Panel are not, contrary to the insurer’s submission, determinative of causation in this dispute: Owen v Motor Accidents Authority[58]; Allianz Australia Insurance Ltd v Girgis[59]; Brown v Lewis[60] and Pham v Shui.[61]
Causation - legal principles
[58] [2012] NSWSC 650.
[59] [2011] NSWSC 1424
[60] [2006] NSWCA 587.
[61] [2006] NSWCA 373.
78.Clauses 6.6 and 6.7 of the Guidelines provide:
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
79.In Peet v NRMAInsurance Ltd[62] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[63] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002,
s 5D”.[64][62] [2015] NSWSC 558 (Peet).
[63] [2012] NSWSC 560 (Owen).
[64] Owen at [27].
80.More recently in Hunter v Insurance Australia Ltd[65] the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [78] herein) which “incorporated “common law principles of causation”[66].
[65] [2021] NSWSC 623 (Hunter).
[66] Hunter at [16].
81.Various authorities have discussed error made by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes.
82.In Norrington v QBE Insurance (Australia) Ltd[67] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[67] [2021] NSWSC 548 (Norrington).
83.The Court stated:[68]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence of otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[68] Norrington at [31].
84.The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[69] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[70]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[71]).
[69] [2016] NSWCA 229 at [64]-[66].
[70] [2004] NSWCA 34 at [35].
[71] [2014] NSWSC 888 at [31]-[32].
Cervical Spine injury
85.Contrary to the insurer’s submissions, there is reference to cervical spine tenderness in the contemporaneous hospital notes.[72] Other examination findings indicated no cervical spine tenderness.
[72] Claimant’s bundle, page 14.
86.There are other reports of cervical spine pain within a short period of the motor accident including the reattendance at hospital on 9 December 2017.
87.We do not accept the insurer’s submission that the absence of complaint of pain to the ambulance officer is significant in circumstances where it is medically plausible that the onset of pain can be delayed for a number of days.
88.The subsequent scans show degenerative pathology which would have pre-dated the motor accident. The nature of the motor accident was sufficient to cause a whiplash injury to the cervical spine. It is reasonable to accept that the nature of the motor accident caused an onset of pain and probable aggravation of in a degenerative neck.
89.The complete absence of neck movement is not medically explicable and inconsistent with previous reporting. The absence of neck movement is not asymmetric. Accordingly, there is no asymmetry of neck movement to satisfy a DRE Category II findings.
90.The right arm symptoms do not accord with any dermatome and is not radiculopathy as defined in clause 6.138 of the Guidelines.
91.Whilst we accept that there was a probable ongoing neck condition, we are unable to make a finding of DRE Category II for the cervical spine.
Right shoulder injury/Right upper extremity
92.We accept that Mr Zou probably sustained a soft tissue injury to the right shoulder from the seat belt evidenced by his contemporaneous complaints. Such an injury would have resolved within a short period noting the absence of pathology in the joint.
93.Dr Dias assessed the right shoulder based on loss of movement due to referred pain from the cervical spine rather than any discrete ongoing injury.[73] We agree with that approach.
[73] Claimant’s bundle, page 321.
94.We have assessed the right upper extremity in accordance with the Nguyen[74] principle. For the reasons articulated in the joint examination report, the degree of loss of movement could not be due to radiating pain from the neck.
[74] Nguyen v Motor Accidents Authority [2011] NSWSC 351.
Low back injury
95.We have earlier set out the clinical records following the motor accident. The first recorded reference to low back pain appears to be on 14 December 2017 and then in the context of pain commencing a “few days ago”.[75]
[75] Claimant’s bundle, page 572.
96.The delay in onset of symptoms is unusual and at the end of onset of symptoms being causally related to the motor accident. However, the motor accident was of sufficient magnitude to cause low back pain and there were no other causes at that time.
97.The relevant clinical note otherwise refers to no past history of low back pain. We interpret that note to mean the period prior to the motor accident.
98.He demonstrated a marked restriction in lumbar movements without any muscle guarding, spasm or spinal dysmetria. There were no radicular symptoms reported corresponding to a specific anatomical distribution and no focal neurological deficits. His condition is consistent with a DRE Lumbar Category I or 0% WPI[76].
[76] AMA4, Table 17, page 110
Right knee injury
99.We accept that Mr Zou struck his knee in the motor accident. That mechanism would have involved a blow causing a soft tissue injury only. We do not accept that the mechanism of injury would explain the pathology shown in the MRI scan.
100.In QBE Insurance (Australia) Ltd v Shah[77] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[78] between the motor accident and the alleged injury.
[77] [2021] NSWSC 288 (Shah).
[78] Shah at [36].
101.The examination report by the Medical Assessors shows a normal range of movement with no crepitation. Those examination findings differ from the assessment of Dr Dias.[79] For that reason the Panel has not assessed any impairment of the right knee.
[79] Claimant’s bundle, page 321.
Other injuries
102.We accept that there were soft tissue injuries to the chest wall and thoracic spine caused by the motor accident which resolved within a short period.[80] The clinical findings of the medical assessors are consistent with the various recorded histories of resolution of symptoms in those body parts.
[80] Claimant’s bundle, page 313.
Deduction for pre-existing impairment
103.The insurer referred to pre-existing pathology and submitted that there should be a deduction resulting in 0% WPI. Whilst there is no doubt that there was pre-existing pathology, the insurer has not established, in accordance with clause 6.31 of the Guidelines, that there was a pre-existing symptomatic permanent impairment in the same region at the time of the accident.
104.The terms of the clause suggest that any onus is on the insurer to satisfy that there should be a deduction for pre-existing impairment because the clause provides that there must be “evidence of a pre-existing symptomatic permanent impairment in the same region”.[81]It is clear from the words of the provision that it must be established that there was a symptomatic pre-existing impairment rather than the concept being disproved by the injured person.
[81] See the discussion of where an onus lies in Vines v Djordjevitch [1955] HCA 19 at [8].
105.Our comments on onus are consistent with observations by the Court of Appeal of where the onus lies on a deduction for pre-existing conditions under the workers compensation legislation.[82]
[82] See Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [37]. Similar comments were made in Pereira v Siemans Ltd [2015] NSWSC 1133
106.The insurer’s submission that there should be any deduction is rejected.
CONCLUSION
107.The medical certificate is revoked as Mr Zou’s impairment is not greater than 10%. The replacement medical certificate is set out at the commencement of these Reasons.
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